Erik R Carbajal v. R Rayborn et al

Filing 12

PROTECTIVE ORDER by Magistrate Judge David T Bristow (See document for further information) (am)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
v.

15
16

CV11-09134 ODW (DTBx)

ERIK R. CARBAJAL,

Plaintiff, [PROPOSED] PROTECTIVE
ORDER
NOTE CHANGES MADE BY THE
COURT

R. RABORN, et al.,

17

Defendants.

Judge:

The Honorable David T.
Bristow

18
19

ORDER

20

Based on the stipulation of the parties filed concurrently herewith, and for

21
22

good cause shown, the Court makes the following orders:
1.

Plaintiff’s counsel shall maintain the confidentiality of the Confidential

23

Reports produced in discovery by Defendants. Specifically, Plaintiff’s counsel

24

shall take all reasonable steps to safeguard the Confidential Reports, and shall not

25

disclose or disseminate the documents or their content except as provided herein.

26

2.

Plaintiff’s counsel may disclose Confidential Reports to co-counsel, and

27

employees who are assisting in the prosecution of this action, including settlement,

28

trial, or any appeal relating thereto. Any co-counsel and employee, to whom
1

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

disclosure is made, shall be advised of, shall become subject to, and shall agree in
advance of disclosure, to the provisions of this Protective Order, requiring that the
material and information contained in therein be held in confidence. Additionally,
Plaintiff’s counsel may share the Confidential Reports with experts and
investigators retained by the Plaintiff without obtaining further consent provided
that such individual(s) consent in writing to be bound by this stipulation and order
to the same extent as Plaintiff’s counsel.
3.

Plaintiff’s counsel shall not show the Confidential Reports to Plaintiff

Erik Carbajal, or third parties, without first obtaining consent of Defendant’s
counsel or a court order authorizing disclosure. Plaintiff’s counsel is free to discuss
with Plaintiff the facts and circumstances contained within the Confidential
Reports, related to the subject incident, being mindful not to disclose information to
Plaintiff related to the identities of CDCR staff, inmates assisting CDCR or
Plaintiff’s victim(s).
4.

The Confidential Reports shall not be used or disclosed by any party or

their counsel, or any person acting on their behalf, for any purpose other than
prosecuting, defending and attempting to settle this matter.
5.

Any copies made of the Confidential Reports shall be stamped

“CONFIDENTIAL.”
6.

DISPUTES:  
6.1 Any party or non-party may challenge a designation of

confidentiality. If a party or non-party fails to challenge a confidentiality
designation within sixty (60) days of receiving the designated confidential
information, it waives its right to challenge the confidentiality designation.  
6.2 The Challenging Party shall initiate the dispute resolution process
by providing written notice of each designation it is challenging and describing the
basis for each challenge. To avoid ambiguity as to whether a challenge has been

28
2

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

made, the written notice must recite that the challenge to confidentiality is being
made in accordance with this specific paragraph of the Protective Order. The
parties shall attempt to resolve each challenge in good faith and must begin the
process by conferring directly (in voice-to-voice dialogue; other forms of
communication are not sufficient) within 14 days of the date of service of notice.
In conferring, the Challenging Party must explain the basis for its belief that the
confidentiality designation was not proper and must give the Designating Party an
opportunity to review the designated material, to reconsider the circumstances, and,
if no change in designation is offered, to explain the basis for the chosen
designation. A Challenging Party may proceed to the next stage of the challenge
process only if it has engaged in this meet and confer process first or establishes
that the Designating Party is unwilling to participate in the meet and confer process
in a timely manner.
6.3 If the parties cannot resolve a challenge without court
intervention, the Designating Party shall file and serve a motion to retain
confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule
79-5, if applicable) within 21 days of the initial notice of challenge, or within 14
days of the parties agreeing that the meet and confer process will not resolve their
dispute, whichever is earlier. Each such motion must be accompanied by a
competent declaration affirming that the movant has complied with the meet and
confer requirements imposed in the preceding paragraph. Failure by the
Designating Party to make such a motion including the required declaration within
21 days (or 14 days, if applicable) shall automatically waive the confidentiality
designation for each challenged designation. Any motion brought pursuant to this
provision must be accompanied by a competent declaration affirming that the
movant has complied with the meet and confer requirements imposed by the
preceding paragraph.

28
3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

6.4

The burden of persuasion in any such challenge proceeding shall

be on the Designating Party. Frivolous challenges, and those made for an improper
purpose (e.g., to harass or impose unnecessary expenses and burdens on other
parties) may expose the Challenging Party to sanctions. Unless the Designating
Party has waived the confidentiality designation by failing to file a motion to retain
confidentiality as described above, all parties shall continue to afford the material in
question the level of protection to which it is entitled under the Producing Party’s
designation until the court rules on the challenge.
7.

If, during any court proceeding, either pre-trial, post-trial or during

trial, Plaintiff intends to offer into evidence any documents, exhibits, or other
materials that reveal materials or information identified as Confidential Reports (or
part thereof) by Defendants, counsel for Plaintiff shall provide counsel for
Defendants reasonable advance notice of such intention. In accordance with Local
Rule 79-5.1, if papers to be filed with the Court contain material or information that
has been designated as “CONFIDENTIAL” the proposed filing shall be
accompanied by an application to file the papers or the portions thereof containing
the confidential material information (if such information is segregable) under seal;
and that the application shall be directed to the judge to whom discovery is
assigned. If, in connection with any deposition taken in this action, Plaintiff's
attorneys question a witness regarding materials marked as “CONFIDENTIAL” by
Defendants as agreed, or uses confidential material as deposition exhibits, the
transcripts of such deposition testimony and exhibits shall be designated as
confidential material and shall be subject to the provisions of this Protective Order.
9.

Failure to comply with the Protective Order could subject the non-

compliant individual(s) to sanctions and punishment in the nature of contempt.
10.

Plaintiff’s counsel agrees to return the Confidential Reports, and any

and all copies, to Defendant’s counsel no later than sixty days following conclusion

28
4

1
2
3
4
5

of the proceedings in this case, including any appeal or retrial.
11. This order, and the obligations of all persons thereunder, including those
related to disclosure and use of the Confidential Reports, shall survive the final
termination of this case, whether such termination is by settlement, judgment,
dismissal, appeal, or otherwise, until further order of this Court.

6
7

IT IS SO ORDERED.

8
4/24/12

9

_________________________
Honorable David T. Bristow
United States Magistrate Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5